Mohamed Hanipa Maidin
Malaysiakini
Oct 17, 2013

MP SPEAKS Freedom of religion as enshrined in Article 11 of the federal constitution has never been absolute. Nowithstanding that, the constitution definitely allows Christians to use ‘Allah’ in their Catholic weekly publication The Herald.

Thus, it is indeed shocking to learn that the Court of Appeal unanimously invoked the constitutional ground to affirm the decision of the home minister in preventing The Herald from using the word Allah in its publication.

As far as I am concerned, the issue is rather simple and straightforward, namely whether Allah exclusively belongs to Muslims. If the answer is in the affirmative, then it is the end of the matter.

In other words the Christians or other religious adherents do not have any constitutional right to use Allah’s name. The rule is so simple – you cannot claim any right which is not yours in the first place.

Truth to be told, Allah is not the exclusive possession of any Muslim. The non-exclusivity of Allah to the Muslims is in fact derived from the Muslim’s main sources of guidance, which are the Quran and the hadith.

Allah transcends racial and religious boundaries

The first chapter of the Quran, known as Al Fatihah (The Opener) categorically states that Allah is the God of the universe, embracing all mankind. Allah, as far as Islam is concerned, transcends racial and religious boundaries.

Be that as it may, I am indeed puzzled when some Muslims vehemently assert the exclusive right to use the word Allah, to the exclusion of others.

The Prophet Muhammad (peace be upon him ) had also shown his par excellent tolerance on this issue. This can be gleaned from Hudaibiyyah’s treaty. In that treaty, the Meccan infidels represented by Suhail ibn Amr refused to let the Name of Allah the Most Benificient, the Most Merciful be written in the treaty.

Instead, Suhail ibn Amr demanded the following words to be used: Bismika Allahumma. The Prophet Muhammad ( peace be upon him ) agreed to the request, despite the fact the Meccan infidels had a different understanding of the word Allah . Do our Muslim brothers in this country claim superiority than their own prophet?

That Allah is not to be confined to Muslims is indeed the opinion of many great Muslim scholars, such as Dr Yusuf Al Qardhawi and Dr Wahbah Zuhaily. In subscribing to such a view, these Muslim scholars in fact, inter alia, relied on the above verse quoted from Al Fatihah as their basis.

Be that as it may, any different stand deviating from such a view, I believe, is nothing to do with religious grounds.

Unfortunately, preconceived fear among the majority of Muslims in this country, fuelled by provocative and irresponsible elements, contributes to this sad state of affairs.

Allah not a Muslim’s exclusive right

Since Allah is not a Muslim’s exclusive right, the Christians must never be restrained from using the word Allah in their religious practice. Any restrain is unlawful and unconstitutional.

It is against the fundamental liberty enshrined in Article 11 of the Federal Constitution. Article 11(1) guarantees freedom of religion and it applies to any person, including non-citizens. So fundamental such a constitutional right, it cannot be abrogated or suspended, even during an emergency.

Of course the right of the non-Muslims to freedom of religion in Article 11 is not unlimited. The Christians are constitutionally protected to profess and practice Christianity and such a right definitely includes the right to use the word Allah by The Herald – a newsletter exclusively for the Catholic adherents.

So long as The Herald is distributed to Christians only – despite the word Allah appearing in it – the constitution will recognise and jealously protect it. No law, or any minister, can supersede such a fundamental right.

Of course, The Herald cannot be distributed to Muslims because it will tantamount to propagation. Article 11(4) prevents The Herald from doing so. To its credit, there is no evidence proving that The Herald has been distributed to Muslims.

If at all there is any proof that The Herald has been distributed to Muslims, it would be an offence not because there is Allah’s name in the publication.

Any Christian publication distributed to Muslims obviously contravenes Article 4 of the constitution, irrespective of whether the word Allah appears or not in it.

In its written judgement, the Court of Appeal, inter alia, invoked Article 3(1) of the constitution to deny The Herald using the word Allah in its publication. I must confess that I have great difficulties to fathom the reasons given by the court.

Now, why invoke the White Paper?

With the greatest respect to the learned judges, I fully subscribe to Dr Aziz Bari’s view that the meaning of Article 3(1) is crystal clear. There is no ambiguity whatsoever.

The article clearly supports The Herald’s fundamental right to peacefully practise its religious freedom. In fact, Article 3(1), in my opinion, is a boon to The Herald and thus a bane to the home minister. The Court of Appeal surprisingly twisted it.

In his judgment, Justice Apandi Ali stated that Article 3(1) was initially absent in the Reid Commission’s report but it was later inserted, having been suggested by Justice Abdul Hamid.

Justice Appandi also stated that there was an assertion in the White Paper that in spite of the existence of Article 3(1), it does not change Malaysia as a secular state.

To be honest, I am unable to detect any relevancy of invoking the said White Paper. On the contrary, by invoking the White Paper, Justice Appandi had in fact given a new bullet to The Herald.

If it is true that our constitution is secular in nature in spite of the existence of Article 3(1), why would a secular constitution have any say or interference in any religious practices by any religious adherent?

I believe the only caveat, if at all exists, to restrain The Herald from using the word Allah is Article 11(5) of the constitution. This article may be used to deny any right to freedom of religion if the practice of such a right is proven to have duly affected public order or morality or health.

But to completely deny such a right, the decision maker, such as the home minister, must present cogent evidence to the court.

Any flimsy and hypothetical perceptions should have never be allowed by the court to replace evidence.

Suspicion, however strong, is not evidence. In interpreting the highest law of the land, the court must never allow itself to be seen as an appendage of the executive .

I am of the view that the Court of Appeal, with due respect, made an erroneous judgment by resorting to ambiguous interpretation of a very clear provision in our constitution dealing with religious freedom.

Let us be reminded, again and again, that the constitution will die if it is interpreted like a will.

MOHAMED HANIPA MAIDIN, the Member of Parliament for Sepang, is a lawyer by profession and a PAS central committee member.